State v. Allen

• Citation: 612 P.2d 199,188 Mont. 135
• Decision Date: 24 June 1980
• Docket Number: No. 14754,14754
• Parties: STATE of Montana, Plaintiff and Respondent, v. Gary ALLEN, Defendant and Appellant.
• Court: Montana Supreme Court

Page 199

612 P.2d 199

188 Mont. 135

STATE of Montana, Plaintiff and Respondent, v. Gary ALLEN, Defendant and Appellant.

No. 14754.

Supreme Court of Montana.

Submitted March 25, 1980.

Decided May 13, 1980.

As Amended On Denial of Rehearing June 24, 1980.

Tipp, Hoven & Skjelset, Missoula, Thomas W. Frizzell, argued, Missoula, for defendant and appellant.

Mike Greely, Atty. Gen., Helena, Ted Mizner, argued, County Atty., Deer Lodge, for plaintiff and respondent.

DALY, Justice.

Defendant was convicted by a jury of criminal possession of dangerous drugs in the Third Judicial District, County of Powell, on February 13, 1979, and received a deferred sentence.

On September 28, 1978, three officers responded to a complaint by John Wilson, an apartment building manager, that there was a loud party taking place in an apartment rented by one Annie Smith. The officers proceeded to Ms. Smith's apartment but the noise and music was under control when they arrived. However, they did smell the strong odor of burning marijuana, though they could not determine exactly the apartment from which it emanated, as there were two apartment doors approximately four feet apart. The officers knew that the defendant was a frequent visitor at Ms. Smith's apartment. One deputy approached the door to the apartment beside Ms. Smith's and was met by a tenant who informed the officer that the apartment Ms. Smith rented was across the hall.

The officers then approached Ms. Smith's apartment and one of the officers knocked at the door which, they testified, swung open at the force of the knock. When the door opened the officers smelled a strong odor of burning marijuana. The officers walked in without express permission. One of the officers noticed some marijuana and drug paraphernalia on a coffee table.

They then arrested the people in the apartment and advised them of their Miranda rights. After the arrests were made, the officers asked Ms. Smith if they could search her apartment. They did not have either a search or arrest warrant. Ms. Smith initially refused to consent to the search, but after some coaxing by the officers plus their informing her that they would get permission from the landlord to search, she finally agreed to the search. Defendant, after arguing with the officers, eventually assisted them in their search, giving them some marijuana which had been located under a coffee table and was not in plain view and some stems and seeds from the kitchen. Defendant had no marijuana on his person.

Ms. Smith rented the apartment and was not dependent on her parents for support although she was only sixteen years old. Defendant alleged he was permanently residing in the apartment with Ms. Smith and that he paid rent for the apartment but had no contractual relationship with the landlord.

After his arrest, defendant moved to suppress the items seized in the search and dismiss the information on the grounds that the officers' entry was unlawful and that the search was in violation of his constitutional rights. A suppression hearing was held on December 14, 1978, and briefs were filed. The motion to suppress was denied. At the trial, the jury found defendant guilty, and he was sentenced by the District Court. From this judgment and the denial of the motion to suppress, defendant brings this appeal.

Defendant-appellant presents the following issues for review by this Court:

1. Does a person permanently living in an apartment have standing to suppress evidence for an unlawful entry and search when he was present on the premises?

2. Does the smell of marijuana constitute sufficient probable cause to make a warrantless entry into and search of a home?

3. Assuming probable cause, can the police enter a private residence without a warrant, exigent circumstances, or an invitation?

4. Did Annie Smith's consent to search defeat any right of defendant to object?

Defendant initially contests the officers' entry into the apartment where he was residing. He insists probable cause here was based solely upon the smell of marijuana and that this is insufficient for a search warrant, let alone a warrantless entry. Defendant submits he was permanently residing at his fiancee's apartment and that under recent Supreme Court authority the test for Fourth Amendment violations is whether the defendant had a legitimate expectation of privacy in the place searched. Defendant argues he had a legitimate expectation of privacy because the place searched was his residence. Finally, defendant asserts that Montana's constitutional right to privacy protects against the type of warrantless entry which took place here.

The State contends that Fourth Amendment rights are personal rights which may not be asserted vicariously and argues that defendant does not have standing to object to the search of Annie Smith's apartment. The State further contends that the defendant did not have a legitimate expectation of privacy under the circumstances that existed in this case. The State argues that Annie Smith's consent was valid and sufficient to override defendant's objection to the search. Defendant, it is asserted, also waived any objection he had to the search when he aided the officers in the search of the apartment. The State insists that the officers had sufficient probable cause to enter the apartment and to make the arrests, and that once the arrest was complete, the officers had the right to make a search incident to an arrest.

Initially we face the question of whether defendant had standing to suppress the evidence seized. Defendant contends that under the United States Supreme Court holdings in Jones v. United States (1960), 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697, and Rakas v. Illinois (1978), 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed.2d 387, he had standing to contest an unlawful entry and search of the apartment.

In Jones the defendant was present at the time of the search of an apartment which was owned by a friend. The friend had given Jones permission to use the apartment and a key to it, with which Jones had admitted himself on the day of the search. He had a suit and shirt at the apartment and had slept there for a night; however, his home was elsewhere. At the time of the search, Jones was the only occupant of the apartment, the lessee having gone away for several days. Based on the above facts the United States Supreme Court held that while one wrongfully on the premises could not move to suppress evidence obtained as a result of searching them, "anyone legitimately on premises where a search occurs may challenge its legality." 362 U.S. at 267, 80 S.Ct. at 734.

Despite the urging by the defendants in Rakas to relax the rule in Jones, the Court declined to extend the rule of standing in Fourth Amendment cases and limited the broad language of Jones. It stated:

"We do not question the conclusion in Jones that the defendant in that case suffered a violation of his personal Fourth Amendment rights if the search in question were unlawful. Nonetheless we believe that the phrase 'legitimately on premises' coined in Jones creates too broad a gauge for measurement of Fourth Amendment rights. For example, applied literally, this statement would permit a casual visitor who has never seen, or been permitted to visit the basement of another's house to object to a search of the basement if the visitor happened to be in kitchen of the house at the time of the search. Likewise, a casual visitor who walks into a house one minute before a search of the house commences and leaves one minute after the search ends would be able to contest the legality of the search. The first visitor would have absolutely no interest or legitimate expectation of privacy in the basement, the second would have none in the house, and it advances no purpose served by the Fourth Amendment to permit either of them to object to the lawfulness of the search.

"We think that Jones on its facts merely stands for the unremarkable proposition that a person can have a legally sufficient interest in a place other than his own home so that the Fourth Amendment protects him from unreasonable governmental intrusion into that place. (Citation omitted.) In defining the scope of that interest, we adhere to the view expressed in Jones and echoed in later cases that arcane distinctions developed in property and tort law between guests, licensees, invitees, and the like, ought not to control. (Citations omitted.) But the Jones statement that a person need only be 'legitimately on premises' in order to challenge the validity of the search of a dwelling place cannot be taken in its full sweep beyond the facts of that case.

"Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), provides guidance in defining the scope of the interest protected by the Fourth Amendment. In the course of repudiating the doctrine derived from Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944 (1928), and Goldman v. United States, 316 U.S. 129, 62 S.Ct. 993, 86 L.Ed. 1322 (1942), that if police officers had not been guilty of a common-law trespass they were not prohibited by the Fourth Amendment from eavesdropping, the Court in Katz held that capacity to claim the protection of the Fourth Amendment depends not upon a property right in the invaded place but upon whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place. (Citations omitted.) Viewed in this manner, the holding in Jones can best be explained by the fact that Jones had a legitimate expectation of privacy in the premises he was using and therefore could claim the protection of the Fourth Amendment with respect to a governmental invasion of those premises, even though his 'interest' in those premises might not have been a recognized property interest at common law. (Citation omitted.)" Rakas v. Illinois, 439 U.S. at 141-43, 99 S.Ct. at 429-430.

The Court went on...